In this chapter:
(1) "Current net parts cost" means an amount equal to the current net parts price of a repair part, less any trade or cash discount typically given to a dealer in the normal, ordinary course of ordering a repair part.
(2) "Current net parts price" means:
(A) with respect to a repair part in current stock, the price for the repair part listed in the supplier's price list or catalog in effect:
(i) when a dealer agreement is terminated or discontinued; or
(ii) for purposes of Subchapter F, when the repair part is ordered; and
(B) with respect to a repair part that has been superseded, the price for a repair part listed in the supplier's price list or catalog in effect when a dealer agreement is terminated or discontinued that:
(i) performs the same function and is for the same purpose as the superseded part; and
(ii) is listed under a different part number than the superseded part.
(3) "Dealer" means a person who is primarily engaged in the business of:
(A) selling or leasing equipment or repair parts for equipment to end users of the equipment; and
(B) repairing or servicing equipment.
(4) "Dealer agreement" means an oral or written agreement or arrangement, of definite or indefinite duration, between a dealer and a supplier that provides for the rights and obligations of the parties with respect to the purchase or sale of equipment or repair parts.
(5) "Dealership" means the retail sale business engaged in by a dealer under a dealer agreement.
(6) "Demonstrator" means equipment in a dealer's inventory that:
(A) has never been sold at retail; and
(B) is or has been made available to a potential customer, as authorized by the supplier, without charge or under a short-term rental agreement for purposes of demonstrating its use and with the intent of encouraging the customer to purchase the equipment.
(7) "Equipment":
(A) means machinery, equipment, or implements or attachments to the machinery, equipment, or implements used for, or in connection with, any of the following purposes:
(i) lawn, garden, golf course, landscaping, or grounds maintenance;
(ii) planting, cultivating, irrigating, harvesting, or producing agricultural or forestry products;
(iii) raising, feeding, or tending to livestock, harvesting products from livestock, or any other activity in connection with those activities; or
(iv) industrial, construction, maintenance, mining, or utility activities or applications; and
(B) does not mean:
(i) trailers or self-propelled vehicles designed primarily for the transportation of persons or property on a street or highway; or
(ii) off-highway vehicles.
(8) "Family member" means a child or other lineal descendant, a son-in-law, a daughter-in-law, or the spouse of an individual.
(9) "Index" means the producer price index for construction machinery series identification number pcu333120333120 published by the Bureau of Labor Statistics of the United States Department of Labor or a successor index measuring substantially similar information.
(10) "Inventory" means equipment, repair parts, data processing hardware or software, or specialized service or repair tools.
(11) "Net equipment cost" means an amount equal to the sum of the price the dealer actually paid to the supplier for equipment, and:
(A) any freight paid by the dealer from the supplier's location to the dealer's location, payable at the cost stated on the invoice, or, if there is no invoice, at the truckload rate in effect when a dealer agreement is terminated; and
(B) the set-up cost of labor incurred in preparing the equipment for retail sale or lease, reimbursable at the dealer's standard labor rate charged by the dealer to its customers for non-warranty repair work, unless a supplier has established a reasonable set-up time to prepare the equipment for retail sale or lease, in which case the labor will be reimbursable at an amount equal to the reasonable set-up time in effect as of the date of delivery multiplied by the dealer's standard labor rate.
(12) "New equipment" means, for purposes of determining whether a dealer is a single-line dealer, equipment that can be returned to the supplier following termination of a dealer agreement under Subchapter H.
(13) "Person" means:
(A) an individual, corporation, partnership, limited liability company, company, trust, or any other form of business entity, including any other entity in which a person has a majority interest or of which a person has control; or
(B) an officer, director, or other individual who actively controls the activities of an entity described by Paragraph (A).
(14) "Repair parts" means all parts related to the repair of equipment, including superseded parts.
(15) "Single-line dealer" means a dealer that:
(A) has purchased construction, industrial, forestry, or mining equipment from a single supplier constituting 75 percent or more of the dealer's total new equipment that is construction, industrial, forestry, or mining equipment, computed on the basis of net equipment cost; and
(B) has a total annual average sales volume of equipment acquired from the single-line supplier in excess of $25 million for the five calendar years immediately preceding the applicable determination date, provided, however, that the $25 million threshold will be increased as of September 1 of each year by an amount equal to the threshold on the date the determination is made multiplied by the percentage increase in the index from January of the immediately preceding year to January of the year the determination is made.
(16) "Single-line dealer agreement" means a dealer agreement between a single-line dealer and a single-line supplier that only provides for the rights and obligations of the parties with respect to the purchase and sale of construction, forestry, industrial, or mining equipment.
(17) "Single-line supplier" means the supplier that is selling to a single-line dealer construction, industrial, forestry, or mining equipment constituting 75 percent of the single-line dealer's new equipment that consists of construction, industrial, forestry, and mining equipment.
(18) "Specialty agricultural equipment" means equipment that is designed for and used in:
(A) planting, cultivating, irrigating, harvesting, and producing agricultural products; or
(B) raising, feeding, or tending to livestock or harvesting products from livestock.
(19) "Specialty agricultural equipment supplier" means a supplier of specialty agricultural equipment whose:
(A) gross sales revenue to the dealer is less than the threshold amount;
(B) product line does not include farm tractors or combines;
(C) sales of outdoor power equipment to the dealer do not exceed 10 percent of the supplier's total sales to the dealer during the one-year period ending on the last day of the calendar month immediately preceding the effective date of the termination of the dealer agreement; and
(D) qualification for that status is determined on a case-by-case basis depending on the sales of the applicable dealer and the sales to the applicable dealer by the specialty agricultural equipment supplier.
(20) "Supplier" means a person engaged in the business of the manufacture, assembly, or wholesale distribution of equipment or repair parts. The term includes any successor in interest of a supplier, including:
(A) a receiver, trustee, liquidator, assignee, purchaser of assets or stock, or surviving corporation resulting from a merger, liquidation, or reorganization of an original supplier; and
(B) a purchaser of all or substantially all of a supplier's assets, such as a purchaser of all or substantially all of the inventory of the supplier or any division or product line of the supplier.
(21) "Terminate" or "termination" means to terminate, cancel, fail to renew, or substantially change the competitive circumstances of a dealer agreement.
(22) "Threshold amount" means the lesser of 10 percent of the dealer's gross sales revenue or $350,000, in each case based on net sales of the dealership during the one-year period ending on the last day of the calendar month immediately preceding the effective date of the termination of the dealer agreement, provided, however, that the $350,000 amount must be increased each year by an amount equal to the amount on the year in which the determination is made multiplied by the percentage increase in the index from January of the immediately preceding year to January of the year in which the determination is made.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1039 (H.B. 3079 ), Sec. 2, eff. September 1, 2011.
